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DACA is Here to Stay, For Now

In this article, we discuss the recent Supreme Court decision to “save” the Deferred Action for Childhood Arrivals immigration program (“DACA”), and what the ruling means for “Dreamers.”


DACA was announced by the Obama Administration in 2012 and it is administered through the Department of Homeland Security (“DHS”). The program provides certain undocumented immigrants who entered the United States as children various benefits including a stay of deportation, temporary employment authorization, and a path to permanent lawful status. About 700,000 undocumented immigrants have availed themselves of DACA since its implementation. They have come to be known as “Dreamers.”

In 2017, after a change in Presidential administrations, then Acting Secretary of Homeland Security Elaine Duke issued a decision memorandum in which she declared that DACA would be rescinded by DHS. In her memorandum, Duke set forth a history of the DACA program and cited a letter by then-Attorney General Jeff Sessions. Apart from that, however, she did not provide specific reasons as to why DACA was being rescinded.

Litigation ensued, and it eventually reached the Supreme Court of the United States.

The Ruling

The Administrative Procedure Act, among other things, requires federal agencies to make reasoned decisions, and it subjects agency actions that are “arbitrary” or “capricious” to judicial review and reversal.

The parties seeking to reinstate DACA argued that the procedure by which DHS rescinded the program violated the Administrative Procedure Act. Specifically, they argued that the decision to rescind DACA was arbitrary and capricious because then-Secretary Duke’s decision memorandum did not provide adequate reasons for why DACA was being rescinded.

The government did not seek to argue that then-Secretary Duke’s decision memorandum provided sufficient reasons. Rather, it argued that because Duke’s successor, Kirstjen Nielsen, subsequently prepared a more thorough statement of reasons for why DHS rescinded DACA, there was no violation of the Administrative Procedure Act.

The Supreme Court, in a five-to-four ruling authored by Chief Justice John Roberts, rejected the government’s position. The Court held that Secretary Nielsen’s memorandum was an impermissible “post hoc rationalization” that could not save DHS’s decision to rescind DACA on Duke’s inadequately reasoned memorandum.

What does this mean for “Dreamers”?

It is important to understand that the dispute before the Supreme Court was about the procedure that DHS followed. It was not about whether DHS has the authority to rescind DACA or whether President Trump has the authority to direct DHS to do so. As the Chief Justice acknowledged in his ruling, DACA may subsequently be rescinded by DHS.

That said, the Second Chances Law Group believes it is unlikely that President Trump will direct DHS to rescind DACA before the upcoming election.

Because DACA is here to stay – at least, for now – the Second Chances Law Group encourages “Dreamers” to ensure they remain compliant with DACA requirements by, among other things, complying with all federal and state laws. DACA has built into it strict conviction-based disqualifiers. These disqualifiers include convictions for driving under the influence of alcohol.

If you are a Dreamer who has been convicted of DUI or another offense, contact one of our attorneys right away. For purposes of DACA, an expungement of your conviction may mean that it will not be treated as a disqualifying felony or misdemeanor.